In March 2017, JUSTICE hosted a roundtable at University College London with practitioners, experts and academics on the ‘neither confirm nor deny’ (NCND) response. The NCND response is most often used by public authorities in the national security and law enforcement contexts to avoid revealing sensitive information. It may, for example, be used in response to requests for information on undercover operations or in relation to surveillance programmes. However, in some circumstances, NCND has been used by public authorities to avoid disclosing information that may reveal unlawful activity. For instance, the police repeatedly used NCND in response to allegations of undercover police officers maintaining long-term, intimate relationships with environmental activists. Currently, NCND is being used in relation to the government’s alleged mass surveillance programmes revealed by US whistle-blower Edward Snowden.
JUSTICE has published a short report building on the discussions at the roundtable, and previous JUSTICE, work to analyse the access to justice and procedural fairness issues raised by NCND. It argues that although there are legitimate circumstances where the response can be invoked, it should not be applied in a blanket fashion. Overuse of NCND unduly limits a claimant’s ability to plead their case and threatens open justice.
JUSTICE’s work was supported by Oxford Pro Bono Publico (OPBP), an organisation based at the Oxford University Faculty of Law, who conducted comparative research on the use of NCND in various jurisdictions.